Prof. Colin Miller asks, and then gives.The recent opinion of the United States District Court for the Southern District of Florida in Dingman v. Cart Shield USA, LLC, 2013 WL 3353835 (S.D.Fla. 2013), addresses three interesting questions under Federal Rule of Evidence 609: (1) are convictions resulting from nolo contendere pleas potentially admissible under Rule 609; (2) is a conviction for failure to register as a sex offender a crime of dishonesty or false statement under Rule 609(a)(2); (3) and should a conviction for failure to register as a sex offender be admissible under Rule 609(a)(1)?

'' Second, plaintiff "suffered even harsher prejudice from the admission of an adverse inference based on her invocation of the Fifth Amendment in response to being asked whether she was ever convicted of any immoral or unethical conduct. Federal Rule of Evidence 609(a)(2) permits the admission of a conviction only when the crime is a felony or the court 'can readily determine that establishing the elements of the crime' required proving a 'dishonest act or false statement.' The district court here failed to consider whether the requirements of Rule 609(a) were met.

*As the judge points out, the Federal Rules of Evidence already contemplate certificates of rehabilitation. See Fed. R. Evid. 609(c) ("Evidenceofa conviction is not admissible if: (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated.").

It happens to the innocent as well as the guilty.”); cf. Fed. R. Evid. 609 (permitting impeachment by evidence that the witness has been convicted of a crime). If the specific conduct underlying the arrest is probative of the witness’s character for truthfulness, the conduct itself may be inquired into on cross-examination, subject to Rule 403 balancing for undue prejudice or some other ground for excluding the evidence.

Trial counsel will undoubtedly will continue to battle over relevance, probative value, cumulative evidence, prejudicial effect and jury confusion until higher courts establish clear precedent. Additional evidentiary issues that courts likely will confront include the admissibility of the DPA as evidence of other crimes, wrongs or acts (Federal Rule of Evidence 404(b)); the inadmissibility of the DPA and the DPA discussions as settlement negotiations (FRE 408(a)); the admissibility of the DPA as a plea agreement versus its inadmissibility as a plea negotiation (FRE 410); and the use of the DPA as impeachment evidence of a criminal conviction (FRE 609(a)(2)). Moreover, even if the court rules the DPA evidence inadmissible as an initial matter, trial counsel will need to shepherd the case in a manner that does not open the door to its introduction.

By contrast, the Federal Rules of Evidence permit a witness’s character for truthfulness to be impeached by evidence of criminal convictions that occurred up to ten years prior. Fed. R. Evid. 609(b). The court also acknowledged the legitimate business reasons for conducting criminal background checks.

We don’t have this come up too often because of the nature of our clients.Luce v. United States, 469 U.S. 38 (1984), held that if a trial court determines that the prosecution will be able to impeach a defendant through his prior convictions under Federal Rule of Evidence 609(a) in the event that he testifies at trial, the defendant only preserves that issue for appeal if he testifies at trial.On a different point entirely, don’t rely on old westerns like “High Noon” as a substitute for expert testimony on a relevant point.

These issues, which are not necessarily ranked in any order, are discussed further below:1. Supreme Court: Michigan v. Bryant – Confrontation Clause: Decision Pending 2. Supreme Court: Bullcoming v. New Mexico – Confrontation Clause: February Argument 3. Reconciling The Confrontation Clause and FRE 703 6. FRE 609 & Constitutional Balance Of The Right To Testify With The Right To Remain Silent 7. FRE 606(b) And Racial Prejudice 8. Another Round On The Reporter Shield Legislation 9. Adjusting the FRE for Electronic-Based Evidence: The Case Of FRE 1002: 10. More Efforts In Support Of Cameras In The Federal Courtroom

The district court did not abuse its discretion in precluding the defense from crossing a government witness about the facts underlying the witness's prior conviction. Federal Rules of Evidence 609 and 403 permit evidence of the nature, but not the facts underlying, the conviction. The government did not violate Federal Rule of Evidence 404(b)'s disclosure requirement when it did not reveal the witness would testify about trading sex for meth because the government didn't know about that until trial.

United States v. Russell, 221 F.3d 615 (4th Cir. 2000) (No. 99-4117).Under FRE 609(e), for purposes of attacking a witness’s character for truthfulness, the “pendency of an appeal” from a defendant’s conviction “does not render evidence of a conviction inadmissible.” How does this rule operate once the appeal is decided?